DOING BUSINESS IN GERMANY 2020

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2020

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Africa: Ridha Hamzaoui, Sabrine Marsit, Emily Muyaa, Yvette Nakibuule Asia-Pacific: Karen Lim, Janice Loke, Mei-June Soo, Nina Umar

Caribbean: Priscilla Lachman, Sandy van Thol

Europe: Mery Alvarado, Madalina Cotrut, Francesco De Lillo, Larisa Gerzova, Teresa Morales, Magdalena Olejnicka, Andreas Perdelwitz, Benjamin Rodriguez, Marnix Schellekens, Ruxandra Vlasceanu

Middle East: Ridha Hamzaoui

Latin America: Vanessa Arruda Ferreira, Maria Bocachica, Diana Calderón Manrique, Gabriela Rodríguez Arguijo

North America: John Rienstra, Julie Rogers-Glabush

IBFD

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ARGENTINA

JANUARY 2013

GERMANY

JANUARY 2020

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INTRODUCTION

This publication has been prepared by the International Bureau of Fiscal Documen- tation (IBFD) for BDO, its clients and prospective clients. Its aim is to provide the essential background information on the taxation aspects of setting up and running a business in this country. It is of use to anyone who is thinking of establishing a business in this country as a separate entity, as a branch of a foreign company or as a subsidiary of an existing foreign company. It also covers the essential background tax information for individuals considering coming to work or live permanently in this country.

This publication covers the most common forms of business entity and the taxation aspects of running or working for such a business. For individual taxpayers, the important taxes to which individuals are likely to be subject are dealt with in some detail. We have endeavoured to include the most important issues, but it is not fea- sible to discuss every subject in comprehensive detail within this format. If you would like to know more, please contact the BDO firm(s) with which you normally deal. Your adviser will be able to provide you with information on any further issues and on the impact of any legislation and developments subsequent to the date mentioned at the heading of each chapter.

About BDO

BDO is a global organisation of independent public accounting, tax and advisory firms which perform professional services under the name of BDO. The global fee income of BDO firms, including the members of their exclusive alliances, was US$9.6 billion in 2019. These firms have representation in 167 countries and ter- ritories, with over 88,000 people working out of 1,617 offices worldwide.

BDO’s brand promise is to be the leader for exceptional client service and when you choose to work with BDO you quickly discover what makes our service offering stand out. BDO offers a comprehensive collection of high quality tax services and assets designed to support exceptional performance, and all our tax engage- ments benefit from the hands-on involvement of experienced professionals, backed by world-class resources. BDO people embrace technology and combine their expertise in this area with the unique relationship-driven and responsive skills we have as human beings to create truly memorable and valuable experi- ences for our clients. Your advisers are both fit for the future and are agile enough to handle the biggest and the smallest names in the industries we serve.

We work hard to understand our clients’ businesses and ensure that we match both our service offering and our people to their complex individual needs. We believe that providing our clients with access to experienced professionals who are actively engaged in addressing their tax and business issues is the most reli- able way to provide exceptional service, always with a strong focus on trust and transparency.

Regardless of your location, size or international ambitions we can provide effective support as you expand into new areas of the world. In an ever-evolving economic environment, businesses need a global organisation that provides exceptional, bespoke service combined with local knowledge and expertise. BDO is uniquely positioned to serve this demand, providing effective support and a truly global integrated global footprint.

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GERMANY

This chapter is based on information available up to 1 January 2020.

Abbreviations

Introduction

Corporate taxpayers are subject to corporate income tax and business tax. A solidarity surcharge is levied on the corporate income tax and most withholding taxes due.

Employers must make social security contributions. A VAT system applies.

The currency is the euro (EUR).

1. Corporate Income Tax 1.1. Type of tax system

Under the classical corporate tax system applicable in Germany since 1 January 2001, corporate profits are taxed at the level of the company and dividends are taxed in the hands of individual shareholders without imputation credits being available for the corporate income tax paid. Economic double taxation, however, is currently mitigated for individual shareholders by a partial-income system or final flat withholding tax (see Individual Taxation section 1.5.). Intercorporate dividends derived from qualifying shareholdings from both resident and non-resident companies are in principle exempt (see section 2.2.).

Companies must generally withhold dividend withholding tax from distributed profits (see section 1.6.2.1.). The tax withheld is creditable for resident shareholders against their corporate income tax liability.

A solidarity surcharge of 5.5% is levied on the corporate income tax due (see section 3.2.).

1.2. Taxable persons

The corporate income tax and the solidarity surcharge are levied on the various types of entity listed in the Corporate Income Tax Law (section 1 of the KStG and section 1 of the SolzG). These include stock companies (AG) and limited liability companies (GmbH) as well as limited partnerships with shares (KGaA). These entities are referred to as companies in this survey. Partnerships not mentioned above are not taxed as sep-

Abbreviation English definition German definition

AO General Tax Code Abgabenordnung

AStG Foreign Tax Law Aussensteuergesetz

EStG Income Tax Law Einkommensteuergesetz

GewStG Business Tax Law Gewerbesteuergesetz

GrEStG Law on Real Estate Transfer Tax Grunderwerbsteuergesetz

GrStG Land Tax Law Grundsteuergesetz

HGB Commercial Code Handelsgesetzbuch

KStG Corporate Income Tax Law Körperschaftsteuer

SGB Social Security Law Sozialgesetzbuch

SolzG Solidarity Surcharge Law Solidaritätszuschlaggesetz

UStG VAT Act Umsatzsteuergesetz

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1.2.1. Residence

An entity is resident if either (i) its legal seat or (ii) its place of management is in Germany (section 1 of the KStG).

1.3. Taxable income 1.3.1. General

Resident companies are liable for the corporate income tax on their worldwide income (section 1 of the KStG). All income of a company is categorized as business income.

1.3.2. Exempt income

The most important types of exempt income are (section 8b of the KStG):

– at the company level, capital contributions upon formation or capital increase, whether or not in return for shares, other membership rights or simply in connec- tion with an increase in the capital reserves;

– at the shareholder level, capital repayments from the company if they do not contain dividend distributions (taxable to the extent they exceed the book value of the shareholder’s investment); and

– qualifying dividends and capital gains (see sections 2.2. and 1.4.).

1.3.3. Deductions

The taxable income of corporate taxpayers is the total amount of income whether from domestic or foreign sources after deduction of business expenses. Dividend payments, as opposed to interest and royalties, do not constitute deductible expenses.

Restrictions concerning the deduction of business expenses exist in particular with respect to outlays for personal expenses (gifts, guest houses and the like), all types of dividends and taxes qualifying as taxes on persons (sections 8(3) and 10 of the KStG).

Also, one half of the fees paid to the members of the supervisory board is not deductible. Directors’ remunerations are, in general, deductible, unless such remuneration is treated as a hidden profit distribution to a shareholder. Expenses that are, in a com- mercial sense, directly linked to exempt income are not deductible (see also section 6.1.1.1.).

Donations for the furtherance of non-profit activities are deductible up to 20% of total income or, upon the company’s choice, up to 0.4% of the total sum of its turnover and salaries; a carry-forward is available.

Interest expenses may only be deducted up to 30% of earnings before interest, taxes depreciation and amortization (EBITDA) (section 4h of the EStG and section 8a of the KStG). For details of the general limitation on the deductibility of interest payments, see section 7.3.

With effect from 1 January 2018, royalties paid to a recipient which is directly or indirectly part of the same group or directly or indirectly controlled by the same shareholder are not fully deductible if the income of the recipient is either not taxed or is subject to a low tax rate due to the application of a preferential regime that does not comply with the OECD’s work on harmful tax practices. The royalty income is consid- ered to be taxed at a low rate if the effective tax rate is below 25%. In addition, the low taxation must be caused by a preferential regime which does not comply with the OECD’s nexus approach as set out in the Action 5 Final Report of the OECD’s BEPS Proj- ect. The nexus approach generally prohibits a preferential treatment of income from intellectual property other than self-developed patents and copyrighted software.

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Royalties remain fully deductible if the preferential regime requires a substantial activity in the state of the recipient. The requirement of a substantial activity is assumed to be met when the recipient of the royalties incurs qualifying expenses in relation to the intangible property.

If the limitation on the deductibility of royalty payments applies, the non-deductible part of the royalty payment is determined by the following ratio: 25% – income tax burden as a % / 25% (section 4j of the EStG).

1.3.4. Depreciation and amortization

Depreciable assets are fixed assets used in the production process which diminish in value over time and have a useful economic life of over 1 year (section 7 of the EStG).

Depreciation is compulsory and must take place whether the company is profitable or whether it incurs losses. The depreciable base of an asset acquired for consideration or produced by the taxpayer is its cost.

Before 1 January 2008, the normal methods of depreciation for movable fixed assets were the straight-line method, the declining-balance method and the production method. They could be used alternatively, provided the required conditions were met.

A change from the declining-balance method to the straight-line method was permitted, but not vice versa. For business assets purchased or manufactured after 31 December 2007, only the straight-line depreciation is available. However, in order to stimulate the economy, the declining-balance method was temporarily re-introduced for movable fixed assets acquired or produced from 1 January 2009 through 31 Decem- ber 2010. The annual rate of depreciation was limited to two and a half times the allowable straight-line rate with an overall maximum of 25%.

For movable fixed assets, a general table issued by the Federal Ministry of Finance applies, giving the asset depreciation range, i.e. the number of years over which the asset is written off.

Assets with a low acquisition cost (under EUR 800, exclusive of VAT) may be fully depreciated in the year of acquisition, provided that the assets are movable and usable inde- pendently from other assets. Alternatively, assets that may be used individually, with a value between EUR 250 and 1,000 (exclusive of VAT), may be depreciated on a pool basis under the straight-line method at 20% per year over 5 years. Under this alternative, qualifying assets with a value of less than EUR 250 (exclusive of VAT) may be fully depreciated in the year of acquisition.

Land is not depreciable. Buildings may be depreciated according to the straight-line method or a special declining-balance method. A change from one method to another is not permitted. For buildings used in a business, and not for living accommodation, the annual depreciation rate is 3%. The declining-balance method is no longer applicable to buildings used in a business, except for some old cases.

For buildings used for accommodation, the annual straight-line depreciation rate is 2%.

The alternative declining-balance rates are:

– first 10 years, 4%;

– following 8 years, 2.5%; and – remaining 32 years, 1.25%.

The declining-balance method of depreciation is no longer available for buildings used

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Acquired goodwill may be depreciated on a straight-line basis over a 15-year period.

For accelerated and additional depreciation, see sections 1.7.1. and 1.7.2., respec- tively.

1.3.5. Reserves and provisions

Liabilities may be valued at their cost or at the going-concern value (section 6 of the EStG). Moreover, liabilities must be discounted at a rate of 5.5%. Not to be discounted are liabilities the term of which at the balance sheet date is less than 12 months, and liabilities which are interest-bearing or which are based on a payment on account.

Provisions may be set up for certain liabilities, thereby reducing taxable income in the year of creation (section 6 of the EStG and section 249 of the HGB). Provisions may be made for certain future pension payments to employees, liabilities on surety obliga- tions, warranties, damage claims, litigation expenses and deductible taxes for corporate income tax purposes.

Provisions for grants to employees to mark the occasion of their completing a round number of years of service may be made, subject to certain conditions.

Tax-free reserves are possible with respect to capital gains on the alienation of an asset if the intention is to replace the asset (see section 1.4.).

1.4. Capital gains

In general, capital gains are included in taxable income (section 8 of the KStG). How- ever, capital gains on the alienation of certain fixed assets which are replaced with similar assets may be rolled over. Up to 100% of the capital gain from the sale of such assets may reduce the acquisition or manufacturing cost of assets of the same kind acquired or manufactured in the same year or in the preceding year. Qualifying assets include land and buildings which at the moment of sale have belonged to a resident permanent establishment of the company for at least 6 years. Capital gains from the sale of land may be rolled over also for the acquisition or construction cost of buildings. The rollover relief is limited to qualifying replacement assets which are attributable to a resident permanent establishment. If the replacement assets are attributable to a permanent establishment situated in another EU Member State/EEA country, the taxation of the capital gains from the hidden reserves may be spread over 5 consecutive years. Upon request of the taxpayer, the tax due may be paid in 5 equal instalments. With effect from 29 March 2019, Germany enacted legislation according to which, for the purposes of the aforementioned rule, the event of Brexit would not constitute a harmful event for the purposes of the 5-year period and, therefore, would not result in immediate taxation of any remaining amount.

If the realized gain is not used immediately for the acquisition or manufacturing of replacing assets, an investment reserve may be set up. The period for carrying it forward is generally 4 financial years, but 6 financial years for buildings the construction of which was started before the end of the fourth financial year after the reserve was set up. If the reserve is not used to reduce the acquisition or manufacturing costs of replacing assets, the taxable amount of the reserve is increased by 6% of the reserve for each year in which the reserve existed.

No rollover relief is available for capital gains from the sale of shares of resident cor- porate entities. For foreign-source gains, see section 6.1.

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Capital gains from the sale of shares are, in principle, exempt from corporate income tax and business tax (section 8b of the KStG). However, a lump sum of 5% of the gains is added back to taxable income representing non-deductible business expenses. The exemption is granted for both direct participations and indirect participations (e.g.

through a partnership), and irrespective of whether the company in which the shares are held is resident or non-resident. There is no minimum participation requirement, nor any minimum holding period, except for certain restructuring situations (7 years).

The exemption is not granted to the extent that the holding has previously been written down to its lower going-concern value and has not subsequently been revalued upwards. Gains on shares held by banks, financial services institutions and finance enterprises for trading purposes are not exempt.

1.5. Losses

1.5.1. Ordinary losses

In general, losses up to EUR 1 million may be carried back to the preceding year. Any excess losses may only be carried forward to be set off against the first EUR 1 million of net income in a given year without restriction; any remaining loss may be set off against up to 60% of the net income exceeding this limit (section 10d of the EStG).

Upon request, the company may carry losses forward without having carried them back.

A company is not allowed to carry over losses if, within 5 years, more than 50% of the capital or participation, membership or voting rights in that company are transferred directly or indirectly to a purchaser or a person related to the purchaser. In December 2018, the previously applicable rule, providing that the loss carry-forward is disal- lowed pro rata for transfers of shares or voting rights between 25% and 50% within 5 years, was abolished with retroactive effect from 1 January 2008. The latter rule was found incompatible with the German Constitution by the Federal Constitutional Court (Bundesverfassungsgericht) in its decision of 29 March 2017.

The loss forfeiture does not apply if the transfer of shares takes place in the course of a reorganization in order to rescue a loss-making company (reorganization clause). The latter requires that it is intended to remove or prevent the insolvency or over-indebt- edness of the loss-making company while maintaining its structural integrity. After the European Commission had decided in 2011 that the reorganization clause constitutes State aid, and ordered Germany to recover any aid granted this way, Germany had sus- pended the application of the reorganization clause from May 2010. Following the decision of the Court of Justice of the European Union of 28 June 2018 (Case C-203/16 P, Dirk Andres (faillite Heitkamp BauHolding) v. European Commission), where the Court annulled the decision of the European Commission, the suspension of the reorganization clause was repealed in December 2018.

A corporate group exemption is applicable to transfers taking place after 31 December 2009. Accordingly, a loss forfeiture does not apply if, after a direct or indirect transfer of shares, the same person or company owns directly or indirectly 100% of the loss- making company. Further, in the case of harmful transactions which take place after 31 December 2009, a loss forfeiture only occurs to the extent that existing losses exceed the hidden reserves of the loss-making company, which are taxable in Germany.

A loss forfeiture exception may also apply to transfers taking place after 31 December 2015, in cases where the loss-making company’s business operations are continued

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the change-in-ownership rules and subsequent forfeiture of loss carry-forward by filing a respective application with the tax authorities. This exception is not available for carried forward losses if such losses resulted from a period before a previous temporary or final discontinuation of business operations or if the company was a controlling parent of a group of companies under the group taxation regime or a partner in a partnership during the 3 fiscal years prior to the change in ownership.

The forfeiture of loss carry-forward applies if, in subsequent years, one of the following events occurs:

– a temporary or final discontinuation of the business operations;

– a change to the purpose of the business operations;

– takeover of an additional business operation;

– participation as a partner in a partnership;

– becoming a controlling parent of a group of companies under the group taxation regime; or

– assets being transferred to the loss-making company and recorded below fair market value for tax purposes.

1.5.2. Capital losses

The offset and carry-over of losses incurred for participations in partnerships are limited if the main purpose of the acquisition or creation of the source of income is to obtain tax benefits.

Capital losses from the alienation of shares in other resident or non-resident companies or from the liquidation or capital reduction of such companies may not be offset.

1.6. Rates

1.6.1. Income and capital gains

The rate of corporate income tax is 15%, increased to 15.825% by the 5.5% solidarity surcharge (section 23 of the KStG and section 4 of the SolzG).

1.6.2. Withholding taxes on domestic payments 1.6.2.1. Dividends

Dividends and other profit distributions paid by resident companies (AG, KGaA, GmbH) are subject to withholding tax at a rate of 25% (26.375% including the 5.5% solidarity surcharge) (section 43a of the EStG). This withholding tax also applies to income from the alienation of a dividend certificate without the alienation of the underlying share.

This withholding tax is creditable against the final corporate income tax liability of resident corporate shareholders.

1.6.2.2. Interest

A withholding tax is imposed on interest from convertible bonds, profit-sharing bonds, participation loans, as well as income from the participation of silent partners in a trade or business. The rate is 25% (26.375% including the 5.5% solidarity surcharge) (sections 43 and 43a of the EStG).

A withholding tax is imposed on interest paid by banks and on interest paid on certain bonds to residents. The rate is 25% (26.375% including the surcharge) (sections 43 and 43a of the EStG).

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The above-mentioned withholding taxes are creditable against the final corporate income tax liability of the recipient company.

1.6.2.3. Royalties

There is no withholding tax on royalties paid to residents.

1.6.2.4. Other

Remuneration paid to contractors for building services is subject to a 15% withholding tax (not increased by the solidarity surcharge) (section 48 of the EStG). No tax is withheld if the service provider has presented a certificate of exemption or if the remuneration does not exceed certain limits.

The tax withheld may be credited against the contractor’s wages tax and corporate income tax liability.

1.7. Incentives

1.7.1. Accelerated depreciation

Accelerated depreciation may be taken instead of ordinary depreciation (see section 1.3.4.) in respect of renovation of buildings (section 7i of the EStG). Accelerated depreciation up to 9% is available in the year of renovation and in the following 7 years, and up to 7% in the following 4 years.

1.7.2. Additional depreciation

Additional depreciation may be taken in addition to straight-line depreciation, production depreciation and, in some cases, in addition to the declining-balance depreciation (section 7g of the EStG).

For companies with net assets of not more than EUR 235,000, an additional depreciation of up to 20% of the cost of acquisition or manufacturing of new movable assets is granted in the year of acquisition or manufacturing and the following 4 years (20% for all years together), provided they remain in a domestic permanent establishment for at least 1 year. In addition, these companies may deduct up to 40% of the prospective acquisition or production costs of future depreciable assets, with a ceiling of EUR 200,000. The reserve will be taxed as soon as the regular depreciation scheme starts to apply to the new assets. In the case the assets are not acquired or produced within the required time, the previously made deduction must be added back retroactively to the taxable income of the tax year for which the deduction was claimed.

For newly constructed rental houses, based on building permissions granted between 1 September 2019 and 31 December 2021, a temporary additional depreciation of 5% of the acquisition or production cost is available in addition to the regular straight-line depreciation. The additional depreciation is only available if the acquisition or production cost does not exceed EUR 3,000 per square metre and the rental property is rented out in the year of acquisition or production and subsequent 9 years. The depreciation basis is the acquisition or production cost with a maximum limit of EUR 2,000 per square metre.

Where additional depreciation is used, the declining-balance method is not allowed.

In the case of accumulation of accelerated and additional depreciation, only one type of depreciation may be chosen (per asset).

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1.7.3. Tonnage tax

Companies whose place of management is situated in Germany may be granted the right to report, for corporate income tax and business tax purposes, their taxable income from the operation of trading ships in international traffic as a certain per- centage of the tonnage of such ships (section 5a of the EStG). The regime may be ter- minated by the taxpayer only after the first 10 years; if the taxpayer elects to terminate the regime, it will not be available for the next 10 years.

From the financial year in which the election was made, taxable income must be reported as follows:

The exploitation of the ship must take place from Germany. The regime is also available for ships used mostly outside the German territorial waters in towing or salvaging services, for prospecting natural resources or for measuring energy deposits under the seabed.

1.7.4. Research and development credit

With effect from 1 January 2020, a tax credit for qualifying research and development (R&D) expenses is available to resident and non-resident taxpayers with domestic sourced business income who are not tax exempt, regardless of their actual size or business activity, provided that they carry on qualifying activities. Qualifying activities are basic research, applied research and experimental development activities, which comprise creative and systematic work undertaken in order to increase the stock of knowledge – including knowledge of humankind, culture and society – and to devise new applications of available knowledge. The tax credit is also available for expenses incurred for third-party professionals who perform the qualifying R&D services, provided the contract research company is resident in a EU Member State or in an EEA country, which allows an adequate exchange of information with Germany.

Qualifying expenses are the costs of personnel engaged in the qualifying activities or the fees paid (60%) to an independent contract research company, with a maximum of EUR 2 million in a given financial year. The tax credit amounts to 25% of the assessment basis. A total maximum of EUR 15 million per project for which qualifying expenses are incurred applies.

1.8. Administration 1.8.1. Taxable period

The tax year is the calendar year (section 4a of the EStG). Taxable income is the income of the company’s financial year that coincides with the calendar year. If a company’s financial year is different from the calendar year, taxable income is the income of the financial year that expires during the tax year.

Net tonnage EUR per day per shipper each 100 tonnes

Up to 1,000 0.92

1,001 – 10,000 0.69

10,001 – 25,000 0.46

Over 25,000 0.23

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1.8.2. Tax returns and assessment

Tax returns must be filed by 31 May of the year following the year for which taxes are due (section 149 of the AO). Extensions are possible up to 30 September and are auto- matically granted by the tax authorities if the return is prepared by a tax advisor or accountant. For tax years beginning on or after 1 January 2018, the filing date for the annual income tax return is 31 July of the year following the tax year. For these years, extensions are possible until the end of February of the second subsequent year (e.g.

28 February 2021 for tax year 2019).

1.8.3. Payment of tax

Resident companies must make quarterly advance payments of corporate income tax on 10 March, 10 June, 10 September and 10 December of each year. Assessed tax is payable 1 month after the taxpayer has received the assessment (section 37 of the EStG).

1.8.4. Rulings

As a rule, a taxpayer is entitled to an advance ruling on the basis of precisely described facts if the tax treatment of the facts would affect his business decisions for the future. The advance ruling becomes ineffective if the tax law on which it is based changes. Advance rulings may not be granted in tax planning matters, for instance in the case of potential abuse of law.

2. Transactions between Resident Companies 2.1. Group treatment

A group of different legal entities may be treated for tax purposes as if they form one single unit, i.e. their profits and losses are pooled in the hands of the controlling company (sections 14 and 15 of the KStG). The effect of the treatment is that the controlling parent becomes liable for corporate income tax on the pooled profits. There- fore, losses of each company may be set off against profits realized within the group.

However, losses of the controlled company from financial years before the one in which the pooling agreement becomes effective are not deductible.

The following conditions apply for group treatment under corporate income tax law (section 14 of the KStG):

– the controlled company must generally be a company incorporated under the laws of an EU Member State/EEA country which has its place of effective management in Germany, the controlling parent can be a resident individual, a non-exempt company as well as a partnership if it carries on its own business;

– the controlled company must be financially integrated into the controlling parent (indirect shareholdings are taken into account if the shareholder has the majority of voting rights in all interposed entities);

– the financial integration must be in place at the beginning of the financial year of the controlled company for which group taxation is sought to apply; and

– a profit-and-loss pooling agreement must be concluded.

Group treatment also applies for business tax purposes under the same conditions.

Group treatment for VAT purposes requires financial, economic and organizational integration, but no profit-and-loss pooling agreement.

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Cross-border grouping is only possible if the controlling company maintains a permanent establishment in Germany. In this case, the profit or loss is allocated to the permanent establishment and taxed accordingly.

2.2. Intercompany dividends

With effect from 1 March 2013, dividends derived by resident corporate shareholders from qualifying participations of at least 10% in the capital of the paying company are, in principle, exempt irrespective of the holding period and the source (domestic or foreign) (section 8b of the KStG). However, a lump sum of 5% of the gross dividends is added back to taxable income representing non-deductible business expenses. With effect from assessment year 2014, the exemption further requires that the dividends were not deducted when determining the profits of the distributing company.

Dividends are not exempt if the participation at the beginning of the calendar year amounts to less than 10% of the share capital of the paying company.

Before 1 March 2013, dividends derived by resident corporate shareholders were, in principle, exempt irrespective of (i) the degree of participation, (ii) the holding period or (iii) the source (domestic or foreign).

For dividends derived by non-residents, see sections 6.2.1. and 6.3.1.

3. Other Taxes on Income 3.1. Business tax

3.1.1. Taxable persons

In general, every company which carries on a business in Germany is subject to business tax (section 2 of the GewStG). Companies are always presumed to carry on a business.

3.1.2. Taxable income

The taxable income for business tax is generally determined in the same manner as for income tax purposes, subject to certain adjustments (section 7 et seq. of the GewStG).

These adjustments refer to certain items that reduce the tax base for corporate income tax purposes but not for business tax purposes and vice versa. For instance, 25% of all interest payments and financing costs exceeding a threshold of EUR 100,000 is not deductible from the business tax base.

Deductions that are allowed for business tax purposes include profits attributable to a permanent establishment located abroad and profit shares derived from domestic or foreign partnerships.

Dividends derived from shareholdings in resident or non-resident companies are taxable for business tax purposes if the participation is less than 15%. Where dividends are taxable, related expenses are deductible.

3.1.3. Rates

The effective rate of business tax depends on a federal rate and a multiplier (sections 11, 14 and 16 of the GewStG). The amount of the business tax is determined by first applying the basic federal rate of 3.5% to the taxable business income which results in a basic tax amount. The multiplier is then applied to this basic tax amount to deter- mine the actual tax burden. The multiplier is fixed by the municipalities and varies

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according to their financial needs. The multiplier is 200%, unless the municipality has fixed a higher multiplier. The current multiplier is 410% for Berlin, 460% for Frankfurt am Main, 470% for Hamburg and 490% for Munich.

The business tax is not deductible from its own base and for corporate income tax purposes.

3.2. Solidarity surcharge

A solidarity surcharge of 5.5% is levied on the corporate income tax due, but not on the business tax. It is computed on the total tax due after deducting tax credits, i.e.

foreign tax credits (section 3 of the SolzG).

In addition, the solidarity surcharge increases the withholding taxes imposed on pay- ments to both residents and non-residents (see sections 1.6.2. and 6.3., respectively), except for the withholding tax on remuneration for building services. If a non-resident benefits from a tax treaty, the total withholding tax, including the surcharge, may not exceed the maximum treaty rate (see section 6.3.5.).

4. Taxes on Payroll 4.1. Payroll tax

There are no payroll taxes.

4.2. Social security contributions

The following social security contributions are payable by employers (for 2020) (sections 158 and 160 of the SGB VI, section 241 of the SGB V, section 341 of the SGB III and section 55 of the SGB XI):

– pension insurance at 9.3% on a monthly salary up to EUR 6,900 (EUR 6,450 in the five new federal states);

– health insurance at 7.3% on a monthly salary up to EUR 4,687.50; health insurance companies may require an additional contribution (on average 1.1% in 2020) which must be borne for 50% by the employer;

– unemployment insurance at 1.2% on a monthly salary up to EUR 6,900 (EUR 6,450 in the five new federal states); and

– insurance for disability and old age at 1.525% (1.025% in Saxony) on a monthly salary up to EUR 4,687.50.

For the social security contributions payable by employees and individual entrepre- neurs, see Individual Taxation section 3.

5. Taxes on Capital 5.1. Net worth tax There is no net worth tax.

5.2. Real estate tax

Real estate tax is levied annually by the municipalities on immovable property whether held as a private or business asset (section 2 of the GrStG). It is imposed on the fiscal value at a basic federal rate of 0.35%. The result is multiplied by a municipal coeffi- cient, which ranges from 280% to 810% and brings the effective rate to between 0.98%

and 2.84% of the fiscal value. The average rate is around 1.9%.

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In a decision of 10 April 2018, the Federal Constitutional Court ruled that the use of outdated fiscal values for real estate tax purposes is unconstitutional. The Court concluded that the continuous usage of fiscal values established in 1964 or earlier for the annual assessment of the real estate tax results in unequal treatment in the evaluation process of real estate which is not sufficiently justifiable and therefore infringes the principle of equality. The Court held that the legislator must amend the existing rules in accordance with the constitutional principles by 31 December 2019. After the enact- ment of new rules, the existing provisions may still be applied for a period of 5 years, but no longer than until 31 December 2024 in order to ensure legislative coverage during the implementation process of the new rules. In December 2019, new rules were enacted which mainly take effect on 1 January 2025. The basic features of the real estate tax regime remain unchanged. However, new fiscal values shall be determined by 1 January 2022.

Real estate tax is deductible for corporate income tax and business tax purposes.

For real estate taxation of individuals, see Individual Taxation section 4.2.

6. International Aspects 6.1. Resident companies

For the concept of residence, see section 1.2.1.

6.1.1. Foreign income and capital gains

Corporate income tax is imposed on worldwide income and capital gains. For the busi- ness tax treatment of foreign income, see section 3.1.2.

Exit taxation applies if a resident company relocates its legal seat or its place of management, outside Germany and consequently ceases to be subject to unlimited tax liability in Germany. There is a deemed disposal of assets so that all hidden reserves are realized and subject to corporate income tax at the regular rate. The same applies if an asset is transferred from a resident company or resident permanent establishment to a foreign permanent establishment to the extent Germany will lose the taxing right over the asset transferred. If a company relocates to or an asset is transferred to a permanent establishment in an EU Member State/EEA country and the EU Directive on Mutual Assistance (2011/16) or a similar agreement is applicable between Germany and the respective EU Member State/EEA country, the taxation of the profits from the hidden reserves on exit may be spread over 5 consecutive years. If a company relocates to a third country, transfers an asset to a permanent establishment in a third country or sells a previously transferred asset during the 5-year period, immediate taxation of the remaining amount applies.

With effect from 29 March 2019, Germany enacted legislation according to which, for the purposes of the aforementioned rule, the event of Brexit would not constitute a harmful event for the purposes of the 5-year period and, therefore, would not result in immediate taxation of any remaining amount.

6.1.1.1. Foreign dividends

Dividends derived by resident companies from substantial shareholdings (more than 10%) are generally exempt irrespective of their source (see section 2.2.), if the divi- dends were not deducted when determining the profits of the distributing company (section 8b of the KStG). A lump sum of 5% of the gross dividends is added back to taxable income representing non-deductible business expenses. Actual business

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expenses, however, are fully deductible. Dividends derived by resident companies from portfolio shareholdings (i.e. holdings of less than 10%) are included in the taxable income.

6.1.1.2. Capital gains on shares

Capital gains derived by resident companies from the sale of shares in non-resident companies are exempt from corporate income tax and business tax under the same conditions as capital gains on shares in resident companies (see section 1.4.). A lump sum of 5% of the gains is added back to taxable income representing non-deductible business expenses.

6.1.2. Foreign losses

Restrictions apply to the set-off of losses derived from foreign operations. Among others, the following types of loss may only be set off against income from a similar activity in the same country in the current year or in the following years (sections 2a and 32b of the EStG):

– losses from foreign trading permanent establishments whose income is deemed to be derived from non-trading activities;

– losses from the write-down of a participation in a foreign company to its lower going-concern value;

– losses from the disposal of a participation held in a foreign company; and – losses from the liquidation or capital decrease of a foreign company.

The restrictions do not apply to losses stemming from operations in an EEA country if the EU Mutual Assistance Directive (2011/16) or a similar agreement is applicable between Germany and the respective EEA country.

A German head office is not allowed to deduct losses incurred by a foreign permanent establishment located in a treaty country. Losses may not be set off or carried over if distributions of profits of a foreign company are exempt under the provisions of a tax treaty or tax relief is granted under domestic law and if the losses are incurred on the disposition of shares in the foreign company, its liquidation or its capital reduction.

6.1.3. Foreign capital

There is no net worth tax. Foreign immovable property is not subject to German real estate tax.

6.1.4. Double taxation relief

An ordinary tax credit is granted for foreign tax paid on foreign income of resident taxpayers, unless this unilateral relief measure is superseded by relief under a tax treaty (section 26 of the KStG and section 34c of the EStG). To qualify for the tax credit, foreign taxes must be similar to German taxes. If the foreign taxes do not qualify, or in any case at the taxpayer’s request, they may be deducted in computing taxable income in lieu of being credited against tax. The foreign tax credit is computed on a country-by-country basis. Excess credits may not be carried forward.

For foreign dividends, see section 6.1.1.1.

6.2. Non-resident companies

Non-resident companies are those that have neither their legal seat nor place of man-

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6.2.1. Taxes on income and capital gains

Non-resident companies are subject to corporate income tax if they derive any of the following German-source income (section 49 of the EStG):

– income from agriculture and forestry;

– business income arising from:

– the operation of a permanent establishment in Germany. The exemption of intercorporate dividends from substantial shareholdings (see section 2.2.) applies. Dividend withholding tax (see section 6.3.1.) is creditable against the non-resident’s assessed tax liability;

– the sale or leasing of German-situs immovable property and rights used in a German permanent establishment;

– the sale of shares in a German company, but only if the seller owned at least 1%

of the capital of the company at any time during the 5 years preceding the sale;

and

– the sale of shares in a resident or non-resident company, if at any time during the 365 days preceding the alienation these shares derived more than 50% of their value directly or indirectly from immovable property situated in Germany (with effect from 1 January 2019);

– investment income (including dividends and certain forms of interest); and – rents and royalties.

If the income is not subject to withholding tax, taxable income is calculated as the dif- ference between income and related expenses. The corporate income tax rate for non- resident companies is the same as for resident companies (see section 1.6.1.).

The taxpayer must file a return for each tax year and receives an assessment from the tax authorities. Non-resident companies having a permanent establishment in Germany are subject to the business tax (see section 3.1.) with respect to the income derived from it.

Withholding taxes on payments to non-residents (see section 6.3.) are imposed on the gross payment, i.e. without deduction of related expenses. The withholding tax rep- resents a final tax in full settlement of the tax liability, unless the income is effectively connected with a permanent establishment. In that case, it is classified as business income; the (net) income is included in the German taxable base and the withholding tax is credited. The inclusion of the income allows the taxpayer to offset losses arising in other parts of the German permanent establishment.

6.2.2. Taxes on capital

There is no net worth tax. Real estate tax (see section 5.2.) is levied on domestic prop- erty.

6.2.3. Administration See section 1.8.

6.3. Withholding taxes on payments to non-resident companies

For withholding taxes on payments to resident companies, see section 1.6.2.

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6.3.1. Dividends

Dividends and other profit distributions paid by resident companies (AG, KGaA, GmbH) to non-residents are subject to withholding tax at a rate of 25% (26.375% including the 5.5% solidarity surcharge) (section 43a of the EStG). This withholding tax also applies to income from the alienation of a dividend certificate without the alienation of the underlying share.

The receiving non-resident company may apply for a refund of two fifths of the withholding tax. The refund procedure is subject to the substance requirements under the domestic anti-treaty shopping rule and requires a certificate of residence provided by the receiving company.

Under the domestic law implementing the provisions of the EU Parent-Subsidiary Directive (2011/96), no withholding tax is levied on dividends paid by a resident subsidiary to its parent which (section 43b of the EStG):

– has a corporate form mentioned in the Annex to the Directive and is subject to a corporate income tax; and

– has held at least 10% of the capital of the subsidiary continuously for at least 12 months.

The withholding tax on distributions made before the expiry of the 12-month holding period is also reduced to zero, provided the holding period requirement is subsequently met. However, in this case, immediate application of the exemption is not allowed; only the refund procedure is available.

If a permanent establishment of a qualifying parent receives the dividends, it only qualifies for the exemption if the participation in the subsidiary effectively forms part of the business capital of the permanent establishment. Furthermore, the permanent establishment must meet the requirements set out in article 2(2) of the Directive.

6.3.2. Interest

Interest payments to non-residents are generally not subject to withholding tax.

However, withholding tax is imposed on interest from convertible bonds, profit-sharing bonds, participation loans, as well as income from the participation of silent partners in a trade or business. The rate is 25% (26.375% including the 5.5% solidarity surcharge) (section 43a of the EStG).

In addition, interest on coupons of bearer bonds that is not credited to a bank account with a foreign bank (anonymous over-the-counter transactions) is subject to withholding tax at a rate of 25% (26.375% including the surcharge). The withholding tax on regular bank interest (see section 1.6.2.) does not apply to payments to non-residents.

The receiving non-resident company may apply for a refund of two fifths of the withholding tax. The refund procedure is subject to the substance requirements under the domestic anti-treaty shopping rule and requires a certificate of residence provided by the receiving company.

Under the domestic law implementing the provisions of the EU Interest and Royalties Directive (2003/49), interest and royalty payments are exempt from withholding tax, provided that the recipient is an associated company of the paying company and is resident in another Member State or such a company’s permanent establishment situated

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other or (ii) a third company has a direct minimum holding of 25% in the capital of the two companies. The relevant companies must have a legal form listed in the Annex to the Directive and be subject to corporate income tax. No minimum holding period is required. The exemption does not apply to (i) interest which is treated as a profit distribution under domestic law, (ii) interest from profit participating loans and (iii) interest and royalties exceeding an arm’s length amount.

6.3.3. Royalties

Royalties paid to non-residents are subject to corporate income tax, which is imposed by withholding at a rate of 15% (15.825% including the 5.5% solidarity surcharge) (section 50a of the EStG).

For the EU Interest and Royalties Directive, see section 6.3.2.

6.3.4. Other

In general, service fees are not subject to withholding tax, unless they contain royalty elements.

The withholding tax on remuneration paid to contractors (see section 1.6.2.) applies also to payments to non-residents. In the case of a non-resident contractor, the tax is final, unless a treaty provides otherwise.

6.3.5. Withholding tax rates chart

The following chart contains the withholding tax rates that are applicable to payments by German companies to non-residents under the tax treaties in force as at the date of review. Where, in a particular case, a rate is higher than the domestic rate, the latter is applicable.

If a treaty provides for a lower tax rate, a request must be made for a refund; in some cases, the lower rate on dividends and royalties may be applied at source.

Dividends¹ Interest^2,3 Royalties³ Individuals,

companies

Qualifying companies^4,5

(%) (%) (%) (%)

Domestic Rates

Companies: 25⁶ 0/25 0/25⁶ 0/15⁶

Individuals: 25⁶ n/a 0/25⁶ 15⁶

Treaty Rates Treaty With:

Albania 15 5 5⁷ 5

Algeria 15 5⁸ 10⁷ 10

Argentina 15 15 10/15^7,9,10 15/–¹¹

Armenia 10/15¹² 7/15¹² 5^7,13 6

Australia 15 0/5^14,15 0/10^7,10 5

Austria 15 5⁸ 0⁷ 0

Azerbaijan 15 5¹⁶ 10⁷ 5/10¹⁷

Bangladesh 15 15 10⁷ 10

Belarus 15 5¹⁸ 5⁷ 3/5¹⁷

Belgium 15 15 0/15¹⁹ 0

DOING BUSINESS IN GERMANY 2020

2020

ARGENTINA

JANUARY 2013

GERMANY

JANUARY 2020

INTRODUCTION

TABLE OF CONTENTS

GERMANY